Vincent J. Ziccardi, Defender, John W. Packel, Asst. Public Defender, Defender Assn. of Philadelphia, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case. Eagen, O'Brien and Pomeroy, JJ., concur in the result. Roberts, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.
Appellant, William Gilmore, was convicted by a jury of murder in the first degree. On March 20, 1972, this Court affirmed his conviction. Commonwealth v. Gilmore, 447 Pa. 21, 288 A.2d 757 (1972). Subsequently, appellant filed a petition for relief under the Post Conviction Hearing Act. Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. After a
hearing relief was denied and appellant has again appealed.*fn1
In this appeal, appellant asserts two grounds for reversal of the order of the lower court. He first argues that he was denied effective assistance of counsel at trial by counsel's failure to raise unnecessary delay in arraignment as a ground for the suppression of appellant's confession. Pa.R.Crim.P. 130;*fn2 Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Appellant next maintains that he is entitled to a new trial because of the introduction of his confession obtained in violation of the same Rule 130. We have considered these two arguments, find them meritless and affirm.
In Commonwealth v. Wayman, 454 Pa. 79, 82 n. 1, 309 A.2d 784, 786 n. 1 (1973), a majority of this Court held that a motion to suppress a confession on the grounds of involuntariness was sufficient to preserve the issue of erroneous introduction of the confession due to unnecessary delay in arraignment after arrest without warrant. Today, however, this Court has abandoned Wayman in favor of the more traditional appellate procedure which requires the preservation of the specific argument in support of the ground for reversal. Commonwealth v. Mitchell, 1975, 464 Pa. 117, 346 A.2d 48. Under that traditional procedure, "appellate courts will not review issues and arguments not raised in the court below." Commonwealth ex rel. Bell v. Rundle, 420 Pa. 127, 131,
A.2d 57, 60, cert. denied, 384 U.S. 966, 86 S.Ct. 1599, 16 L.Ed.2d 678 (1966), quoted in Commonwealth v. Wayman, 454 Pa. at 87 n. 1, 309 A.2d at 789 n. 1 (dissenting opinion) (emphasis added). To allow appellant to raise such arguments on collateral attack "would virtually emasculate Section 4(a) of the PCHA, defeat its very objective, and permit constant and repetitive relitigation issues already finally decided on their merits." Commonwealth v. Slavik, 449 Pa. 424, 431, 297 A.2d 920, 924 (1972), quoted in Commonwealth v. Wayman, 454 Pa. at 87-88 n. 1, 309 A.2d at 789 n. 1 (dissenting opinion). Having failed to raise the issue of unnecessary delay in his motion to suppress his confession, appellant has placed the issue beyond appellate review either on direct or collateral attack. Pa.R.Crim.P. 323(b); Post Conviction Hearing Act, supra, § 4(b), 19 P.S. § 1180-4(b); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
Appellant's claim of ineffective assistance of trial counsel is founded on counsel's failure to raise the issue of unnecessary delay in the pre-trial motion to suppress. Of course, if his counsel's conduct amounted to ineffective assistance, no waiver of that issue, as discussed previously, would have occurred. Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973).
Before our decision in Commonwealth v. Futch, supra, violations of Rule 130 were considered only in combination with other factors which would establish involuntariness of the confession. Commonwealth v. Koch, 446 Pa. 469, 474-75, 288 A.2d 791, 794 (1972), and cases cited thereat; Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). Therefore, to determine whether counsel's conduct was so ineffective as to demand reversal, we must consider whether the original facts asserted, together with the additional factor of unnecessary delay, would have resulted in the suppression
of appellant's confession under the totality of the ...